Last Will and Testament

A will is a legal document that outlines the wishes of the testator (person making the will) regarding the distribution of property and the care of minor children, if any, after their death. It is the foundation of most estate plans and plays a crucial role in succession planning to ensure that there are no disputes among legal heirs after the testator's demise. The will designate an executor who is responsible for carrying out the wishes of the deceased and provides instructions for distributing the estate.

The testator must be above the age of 18 years and of "sound mind" to make a Will, which means that:

• The testator understands he or she is making a Will and knows what a Will is;
• The testator understands his or her relationship to those mentioned in the Will; and
• The testator understands what types of property he or she owns, how much of that property he or she owns and how he or she intends to distribute that property.

It's important to review a Will periodically to ensure that it still aligns with the wishes of the testator and meets their current needs. There are specific events when it's critical to review a Will, including:

• The testator gets married or divorced (a change in marital status may void the previous Will);
• There is a significant change in the amount of money and property the testator owns;
• The executor or a significant beneficiary in the Will dies;
• There is a birth or adoption of a child in the testator's family;
• The testator changes his or her mind about the provisions in his or her Will.

How to use this document?

In order to be valid, a Will does not need to adhere to any specific form or feature certain language. However, the document must disclose the intention of the testator in making dispositions of his or her property to come into effect at death.

A typical will usually states that all debts of the estate, including taxes, should be paid first, although they are payable anyway. It names an executor who will be responsible for administering the estate and then sets out the powers of the executor(s) in administering the estate. The will then sets out any specific assets, properties, or money that are to be distributed. Whatever is left after all of the specific gifts have been given and all debts have been paid is called the residue of the estate. A will should contain a residue clause that specifies how the residue should be distributed.

In order for a will to be legally valid, it must be signed by the person creating it (known as the testator), as well as by two witnesses who are both of sound mind and at least 18 years old. All three parties must be present together at the time of signing. It is important to note that the witnesses should not be beneficiaries of the will. While there is no legal requirement to register the will, doing so can help to ensure its validity and prevent any future disputes. The will is registered with the local sub-registrar. If the will is registered, a copy will be kept on file by the government and can be referred to as needed. Further, this document can be notarized by a public notary to support its validity and witness the signatories.

Applicable laws

In India, the Indian Succession Act, 1925, governs the law of succession. However, for some religions, personal laws also come into play in respect of the assets that can be given away through a will. For instance, matters relating to succession and inheritance of a Muslim are governed by Muslim personal laws. The general rule under Muslim personal laws in India is that a Muslim may, by his will, dispose of only up to one-third of his property which is left after payment of funeral expenses and debts without the consent of his heirs. Similarly, in the case of Indian Christians and Parsis, upon marriage, a will stands revoked so needs to be made again.

Further, while it is not necessary to register a will if it is registered with the Sub-registrar under the Indian Registration Act,1908, it would prevent the same from being challenged after the death of the testator.

Further, the process of writing the will can also be video recorded, and a video recording of the making of a will is admissible for evidence under the Indian Evidence Act, 1872.

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